Thursday, June 17, 2010

Rand Paul and what's wrong with libertarianism

Whether you think they are good in themselves or not, there are some events which become teaching moments. Rand Paul's candidacy is surely one of them. His candidacy is an opportunity to make a clearer distinction between libertarianism and traditional conservatism.

I have said before that libertarianism is conservatism without a soul. But this definition is a little too general (and certainly too cheeky) to be useful. Here is, I think, the central problem with libertarianism and what makes it different than traditional conservatism: libertarianism sees freedom as an end rather than a means.

For the libertarian, any restriction on freedom is, by nature a bad thing. This is why someone like Paul gets in trouble when sharing his thoughts on civil rights laws. Civil rights laws impinge on the freedom of business owners, no question about it. And if this is you're only criterion for judging the justice of a law, then this is how it will look to you.

However, if freedom is only a means, rather than an end, then you are not driven inevitably to this conclusion. To the traditionalist conservative, freedom is not an end, it is a means--a means to the end of the common good. Furthermore, it is only one of several means toward that end. If this is true, therefore, the worth of civil rights laws cannot solely be decided on the criterion of whether they interfere with the freedom of private business owners, but whether the benefits they have toward the common good outweigh the interference with that freedom. The libertarian's philosophy disallows him from even asking this question, since it introduces a criterion he doesn't even recognize.

This is the whole problem with the Tea Party Movement--and any other neoconservative movement: it doesn't recognize or understand the distinction between freedom as a means and freedom as an end.

The position of his critics, mostly liberals, however, is hardly any better. They have even less justification for supporting civil rights laws. If we are to take their criticism of abortion laws as an example--that they "impose morality"--then how can they justify the support of civil rights laws, which clearly impose morality? But there is much more to be said on this that I don't have time to say here.

44 comments:

"If we are to take their criticism of abortion laws as an example--that they "impose morality"--then how can they justify the support of civil rights laws, which clearly impose morality?"

We're not being inconsistent because "impose morality" is shorthand for applying rules of personal conduct concerning activities which either aren't harmful to others or constitute a fundamental right (for example, if you break up with your fiance that could be very hurtful, but the state has no business forcing you to marry someone).

When people operated businesses which were open to the public in order to make money, and we allowed them to discriminate on the basis of race, this was extremely harmful to African-Americans, who are American citizens deserving of the same rights as whites, regardless of anyone's belief of how moral it was. In fact, fifty years ago many people considered racial integration to be immoral. If, otoh, a person chooses to date whites only due to racism, thats a private decision that does little harm to anyone else, even if today we consider that person's irrational hatred of African-Americans to be immoral. Do you understand the difference?

Freedom is only freedom in the proper sense if it's directed toward a good end. Otherwise, it's just an empty semblance of freedom. That's why a well run society has a duty to punish those who act wrongly and reward those who act well.

That's why "freedom" to kill a child, abuse heroine, cheat on a spouse, verbally abuse a child, and so on is not really freedom and should be punished.

Our prisons and jails are bursting at the seams as it is and we are going broke fighting the war on drugs. If you criminalize adultery, the entire state budget will have to be devoted to warehousing philanderers.

Not "any" activity between consenting adults. Take prostitution, for example. It is a proper activity for the state to regulate or prohibit because it is a business transaction and the state has a rational interest in curbing the spread of disease and protecting women from exploitation.

OTOH, Thomas' suggestion that adultery be criminalized strikes at intimate, private relationships which I don't believe the state has any business regulating. Human relationships are fraught with difficulties, and there's no reason to think the state can improve them by wading into that morass. Such a law would be ripe for abuse by warring couples in divorce and custody contests, and corrupt prosecutors (who may well be philanderers themselves) for political ends. And its a waste of judicial resources which should be marshalled primarily to protect citizens from violent crime. A singularly bad idea all around.

Of course the government has an interest in marriage: it's a legal institution governed by public law (family law is a big area of the law). The government regulates marriage because marriage is a legal relationship. Why in the world would you think the government does not have an interest in protecting an important social/legal institution?

Considering the very harsh social effects that adultery and divorce has on society as a whole (and on children in particular) it's an excellent area to spend some judicial resources on. Imposing heavy fines on such destructive behavior could help generate revenue. It's a win-win all around.

No, its not. The best that one could hope for is that the law would generally be ignored and simply stand as a monument of rank hypocrisy and pandering to the religious right by politicians, many of whom likely have had affairs themselves. And you are not talking about regulating marriage, but rather consensual, private sexual relationships. I seriously doubt it would have much impact on adultery rates. People already engage in affairs knowing the damage it could cause if they were caught, so a fine isn't going to have much additional deterrent value. The primary effect, IMO, would be that parties would try to use adultery charges as leverage in their divorces. Fortunately, though I doubt I can change your mind, there's no chance such a law will pass, and its constitutionality is questionable anyway.

Adultery laws have been on the books in many states for many years and are still prosecuted. So not only can the laws pass, but they have passed and are in effect.

There's no such thing as a private relationship. It's a fiction; every relationship is social by definition. There's certainly no natural right to do what one wants in a consensual relationship, nor is there a Constitutional right (the days of a liberal activist court are probably past anyway).

And there's every reason that a government can enact laws to proscribe behavior that negatively affects a public, legal relationship. That's one of the purposes of government. The fact that such a relationship is consensual is entirely immaterial. The belief that because something is consensual it is afforded some kind of protection is pure superstition; there's no reason behind it other than that quite a few people have been duped into believing it (including some of the less bright members of our judiciary, but I'll let that go for now).

You have already said it is okay to regulate consensual, private relationships when you said it was legitimate to regulate prostitution. And adultery is already used as leverage in divorce cases.

You talk about how the state has a rational basis for regulating prostitution because of disease, but why doesn't he government have a rational basis for, say, prohibiting divorce, since divorce is one of the top two reasons people (mostly women) end up on the welfare roles?

If the state prohibited divorce, the most likely unintended consequence would be that even more people would choose not to get married in the first place. I presume that you would prefer to increase the marriage rate, rather than cause it to drop further.

You keep shifting the ground of argument. I'm trying to determine what your criteria are here and apply them consistently. If something can be regulated if the government has a "rational interest," then marriage can be regulated since the government clearly has a rational interest in regulating it. But you are against it, which doesn't make sense to me.

I do think that since the state provides benefits to couples based on them meeting the state's definition of being "married", the state can dictate what conditions have to be met to obtain those benefits, so long as the conditions are rational and don't impinge on fundamental constitutional rights. For example, in Loving v. Va., laws prohibiting interracial marriage were declared unconstitutional. Therefore, if the state chooses to prohibit divorce,it can do so. I don't think that's a wise policy decision, but that doesn't mean it would be irrational, and there is no fundamental right to divorce.

The Supreme Court disagreed with you in striking anti-sodomy laws. Since that opinion was authored by Justice Kennedy, I don't expect it to be reversed anytime soon. Since you say that adultery is still prosecuted, I would appreciate it if you could cite any such recent prosecution to me.

Lawrence v. Texas is pretty notorious for not having much to do with what the Constitution actually says. Just because the Supreme Court says the Constitution says something does not mean that it does, it just means the lower courts are bound to treat it as if it does. Nothing in the Constitution protects consensual sex, and there is no general right to consensual sex.

In any case, Lawrence v. Texas has been construed by many of the lower courts not to establish any fundamental right at all, but simply to subject some laws to the standard of strict scrutiny.

Laws don't get randomly selected for strict scrutiny-if it doesn't impinge on a fundamental right or isn't outrageous, then courts only require a law to be rationally related to a legitimate state interest. The right to privacy has been well established for decades in constitutional jurisprudence, and I seriously doubt most Americans relish the notion of the state dictating their private, personal intimate behavior with other consenting adults.

No, the right to privacy has not been well established. Roe v. Wade has been in the process of being overruled, piece by piece. Since these decisions have been obviously derived from judicial activism in the courts, and not from the Constitution (or even the good case law on the Constitution) it's unclear how wide the application even is.

It's especially ironic that you're concerned with what the American people care about, when you're trying to say that the democratic process that generates legislation should be shut down on these issues by judicial decisions.

But, really, who cares what the American people want? Adultery has a strongly corrosive influence on society and on our public legal institution. It (combined with divorce) do more to contribute to the economic and moral oppression of women and children than does almost anything else; advocating legalized divorce and adultery, in practical effect, comes close to advocating misogyny. There's every reason to make it subject to criminal and civil penalties.

If the only source of a "right" to private, consensual activity is an activist decision by the court that hasn't even been applied to adultery laws, you're on very weak ground.

You could say that. Rand sees property rights as fundamental, whereas I, and the courts, see privacy rights as fundamental.

Now if I took your conservative viewpoint, and said that the freedom to engage in private, consensual intimate relations with other adults can be restricted for the common good, I would still have to be convinced that the common good would benefit significantly from, for example, criminalizing adultery or sodomy. Its not enough to say that those practices are considered immoral by many-how would society actually benefit from criminalizing that private conduct, and would it outweight the interference with individual freedom? Thomas passionately believes that criminalizing adultery is a clear benefit, which I respectfully disagree with for the reasons I gave before, but how is the common good advanced by criminalizing sodomy, and does it really outweigh the terrible oppression it inflicts on homosexuals?

Terrible oppression? Maybe you would like to give the data showing the relative incomes of the average gay and women whose husbands have divorced them.

But regardless of this, I have not said anything about what I thought the government should be able to regulate. I have simply applied the standards you yourself have articulated here. But when I try to apply them consistently, you move on to some other standard that gets the result you prefer.

I think I've been pretty consistent-private, consensual intimate adult behavior equals little or no government regulation, while public behavior, especially if its for business or the performer is seeking government benefits, equals appropriate for rational government regulation.

I said that private, intimate consensual adult relations should be subject to little or no government regulation. Examples of the few instances that government can justify regulation would be incest due to the high risk of birth defects and exploitation, or a person with HIV failing to inform his or her partner, or regulation of sexual activity within the military to preserve discipline and moral. In most other instances of consensual intimate relations between adults, the government ought not to get involved because there is no compelling reason to do so.

I discussed prostitution already-its not private behavior, its a business transaction, and therefore subject to rational regulation. When you advertise services for sale to strangers, you're not engaging in private behavior.

"So private, intimate consensual adult relations should be subject to little or no government regulation except when they should? I think I get it now."

Its an easy enough concept to understand, if you are familiar with constitutional law. There are no absolutes-even our most precious 1st Amendment rights of speech and worship are subject to some regulation. But the government has to have a compelling interest and the law has to be narrowly tailored, so don't try to pretend I'm contradicting myself-you can't win an argument by knocking down a strawman version of what I'm saying.

You keep begging the question: where does this right to private, consensual relations come from? (We'll ignore for a moment the fact that it's not actual private, it's a social relationship.) It's not a natural human right. It's not a moral right. It doesn't arise from a social contract (from the Constitution or otherwise). If the basis of this right is a notorious instance of judicial activism, it's awfully shaky ground: it's anti-democratic and it could be overturned at any time. Not to mention that decision has been construed very narrowly. So what is it? Where does the right come from?

Chanting "judicial activism" doesn't impress me, nor does your opinion that the Constitution doesn't protect the right to privacy. Privacy is important to, or expressly protected by several of the amendments, and the founding fathers expressly rejected the notion that the only rights protected by the Constitution were those expressly enumerated therein in the Ninth Amendment. I suggest you read Griswold v. Connecticut.

I also don't know were you get the notion that private consensual relations aren't a natural human right-I can't think of any right which is more important to having a life worth living.

Before I start arguing against your position, let me make sure I have it right. You believe that a right to private consensual relations exists because (a) it's a natural right, (b) it's in the Constitution, and (c) it's been affirmed by the Supreme Court. And you believe this right to be limited when it becomes public, which occurs when it involves a financial transaction; but this right is not limited by the direct negative effect it has on public institutions.

As I said earlier, there are limited situations in which the government has a compelling interest which justifies intervention. An example I gave in which regulation is justified to prevent damage to a public institution is the military.

I don't think defense of the institution of marriage justifies criminalizing adultery. For such a statute to have a serious deterrent effect would require a massive government intrusion into our lives. The damage to our privacy rights would significantly exceed the intended good, since a marriage is probably already in bad shape if one of the spouses is seeking an outside sexual partner. Such a law would likely also have the unintended consequence of encouraging divorce, destroying the very marriages it was intended to save. If the law isn't intended to be seriously enforced, the situation in many states today, but merely serves as a monument to the state's disapproval of adultery, then it will have no deterrent effect. The rare prosecution will instead serve to promote a prosecutor's political career, or, as in the link Thomas provided, serve as a vehicle for a former mistress who was happy to fornicate with a man to extract her revenge when they break up! Not to mention that divorcing parties will threaten to criminally charge each other with adultery to gain leverage (in current no-fault divorces, adultery is of little relevance). In short, I don't see any compelling government interest which justifies criminalizing adultery-the government lacks the capacity to solve every problem, especially concerning matters of the heart, and the criminal law is an extremely blunt instrument which can cause a lot of unintended damage.

If you want to see straw men, you need to review your previous comments on my post. You have mischaracterized what I said numerous times. I at least had the courtesy to say that you "seemed" to be saying what I pointed out, largely because you did.

Here is what you said:

I also don't know were you get the notion that private consensual relations aren't a natural human right-I can't think of any right which is more important to having a life worth living.

You gave as the reason for private consensual relations as a natural human right the fact that you couldn't think of any right more important.

That answers (b) and (c), but not (a). Is there a right (moral or natural) to privacy?

It's more than a little strange you would cite Griswold in support of a privacy right that extends to adultery. Griswold explicitly does not announce a blanket right to privacy, but intervenes only because the law negatively impacts the institution of marriage (381 US 479, 482). The reasoning of the case very clearly would not extend such a right of privacy towards harmful actions that violate a marriage, as marriage is a "coming together for better or for worse, hopefully enduring, and intimate to the degree of being sacred. It is an association that promotes a way of life, not causes; a harmony in living, not political faiths; a bilateral loyalty, not commercial or social projects. Yet it is an association for as noble a purpose as any involved in our prior decisions" (486). It's actually a pretty poorly reasoned decision, but that's not terribly relevant because it doesn't support the case you're making.

Your argument against criminalizing adultery relies on an empirical basis, rather than a principled basis, since you say that it's because the harm of a law criminalizing adultery exceeds the good that will come of it. Your argument would then support criminalizing adultery if it were the case that the good outweighs the harm. If you're going to make that sort of argument, you're going to have to flesh it out more by quantifying the harm and good that would come of the law.

I actually have a solution that gets around most of the problem: pass a law saying that the non-cheating spouse can get heavy punitive damages against both the cheating partner and the person with whom the partner was cheating (provided that person knows of the marriage). If the spouse who was wronged prefers to stay with the cheating spouse, he or she can recover from the third party. If the spouse who was wronged chooses to forgo the publicity, they can do nothing. That way, how the law affects the privacy of the marriage (the concern in Griswold) is up to the wronged party.

You could have read the first paragraph of my post, in which I discussed the fact that the founding fathers and the Supreme Court considered privacy rights important, so its based on a little more than just my opinion.

I would also dare to suggest that, besides myself, most people would consider their intimate personal relationships to be extremely important to their lives.

The issue isn't a right to commit adultery, its the right to privacy (just as Justice Kennedy corrected the misconception from Bower v. Hardwick that the issue was the right to engage in homosexual sodomy).

That's not the reasoning in Griswold. Griswold doesn't argue that there's a general right to privacy; it argues that because of the legally esteemed nature of marriage, it's entitled to a (qualified) right to privacy emanating from the Constitution. Griswold actually militates against your position, since it's essentially arguing marriage is entitled to special legal protections. I would think you'd be better off relying on Kennedy's recent decisions and repudiating Griswold.

You are reading Griswold too narrowly. It talks specifically about marriage because it concerned married couples. But it also talks extensively about the right of free people to be secure in their homes and persons. In subsequent decisions, the Court has recognized that our right to privacy is not limited to the marital bedroom.

Why don't you explain what you find so compelling in Griswold? Not only is it not a good argument, but the reasoning in it works against you. The argument pretty much goes like this:

1. We have found there to be an implicit qualified, right to privacy on the basis of explicit Constitutional rights (at which point the court just cites to a bunch of cases).

2. Marriage is an important social and legal institution deserving of special protections.

3. In our personal judgment, we believe marriage ought to be brought under the limited right to privacy.

In other words, there's no general right to privacy, and the decision ultimately rests on the court's ipse dixit. I suppose it's nice that the court shares its feelings about how special marriage is with us, but this isn't an argument. Even if it were, it's not one that supports your case.

If you prefer the reasoning in the later cases that extended this ruling, you should say so. But you said it was the reasoning in Griswold that you found convincing. I'm struggling to find any reasoning at all in Griswold. Perhaps you ought to enlighten us.

Not to get in Martin and Thomas' way, but I don't understand why a sexual relationship can be regulated when money is involved (thus becoming public), and otherwise must be left alone by the state (i.e., allow adultery).

Why do we have to buy a marriage license from the state if marriage is not a public institution?

Prostitution is a business transaction, and thus is subject to rational regulation by the government. Prostitutes have to advertise their services to strangers in public, thus there is no expectation of privacy.

The consensual intimate relations we have with other adults in private are within the constitutionally protected zone of privacy. As stated in a quote in Griswold:"The principles laid down in this opinion [by Lord Camden in Entick v. Carrington, 19 How. St. Tr. 1029] affect the very essence of constitutional liberty and security. They reach farther than the concrete form of the case then before the court, with its adventitious circumstances; they apply to all invasions on the part of the government and its employes of the sanctity of a man's home and the privacies of life."

Thus in order to justify government intrusions into our private, intimate relationships it needs a compelling reason to do so, and as I have discussed elsewhere in this thread, I don't think the state can make a compelling case to criminalize adultery. The massive intrusion into our private lives by government that would be necessary to make the law effective cannot be justified by the good it is supposed to accomplish.

People get marraige licenses from the state in order to receive certain state benefits, thus in relation to gaining those benefits there is a public aspect to marriage which the state can regulate. However, the state still has to have a compelling reason to attempt to regulate the private intimate relationship between husband and wife. Thus, as the Court in Griswold held, just because you obtain a marriage license does not mean that you become breeding stock for the state and can be prohibited from using contraceptives-free men and women are not cattle to be bred.